Raffel v. Perley

• Decision Date: 28 July 1982
• Citation: 14 Mass.App.Ct. 242,437 N.E.2d 1082
• Parties: , 34 UCC Rep.Serv. 408 Jack I. RAFFEL et al. 1 v. David W. PERLEY.
• Court: Appeals Court of Massachusetts

Page 1082

437 N.E.2d 1082

14 Mass.App.Ct. 242, 34 UCC Rep.Serv. 408

Jack I. RAFFEL et al. ¹ v. David W. PERLEY.

Appeals Court of Massachusetts Middlesex.

Argued May 13, 1982.

Decided July 28, 1982.

John K. Britt, Wakefield, for plaintiffs.

Francis E. Jenney, Waltham, for defendant.

Before PERRETTA, DREBEN and KASS, JJ.

DREBEN, Justice.

The plaintiffs appeal from the dismissal of an action brought in 1981 against the defendant, a civil engineer and land surveyor, who, they allege, negligently and in breach of express and implied warranties, erroneously located boundaries on a May, 1973, plan. The plan was attached to the complaint and appears to have been prepared to obtain an endorsement under G.L. c. 41, § 81P, as appearing in St.1963, c. 363, § 1, that "approval under the subdivision control law [is] not required" by the planning board of the town of Pepperell. So far as appears from the complaint, the plan was not ordered by the owners in contemplation of any physical alteration in the land, and, in particular, there is no suggestion that any roads, utilities or a change in topography was contemplated. ² The primary issue presented in this appeal is whether the defendant designed or planned "an improvement to real property" so as to be protected by the six year provision of G.L. c. 260, § 2B. ³ We reverse as we hold that a survey and plan dividing property into lots, at least where the plan is unrelated to any proposed construction or changes in the topography of the land, is not the "design" or "planning" of an "improvement to real property" within the meaning of G.L. c. 260, § 2B.

The statute does not define "improvement" nor, unlike some statutes elsewhere, does it specifically include ⁴ or exclude ⁵ surveys. Although G.L. c. 260, § 2B, was recently reviewed in Klein v. Catalano, 386 Mass. 701, 437 N.E.2d 514 (1982), neither that case nor any other Massachusetts case has, as yet, construed the term "improvement" as used in the statute.

New Jersey and Colorado, both of which have similar legislation, have considered the application of their statutes to surveyors' plans. The Supreme Court of New Jersey, although holding the statute inapplicable on other grounds, stated, "There is no reason why ... a surveyor whose professional work is functionally related to and integrated with a building plan or design, ... should not fall within the statute." E. A. Williams, Inc. v. Russo Dev. Corp., 82 N.J. 160, 169-170, 411 A.2d 697 (1980). In that case, the surveyor was hired "to prepare a survey of the premises acquired for the business and to delineate the exact location where a building should be constructed in order that it would be placed in the center of the property." Id. at 162, 411 A.2d 697. In Commonwealth Land Title Ins. Co. v. Conklin Associates, 167 N.J.Super. 392, 394, 400 A.2d 1208 (1979), affirming 152 N.J.Super. 1, 377 A.2d 740 (1977), the Appellate Division held ⁶ that a survey to effect placement of houses, garages and driveways came within the statute as it relates to the design and planning of an improvement. The court declined to decide whether an original perimeter survey, which was not undertaken to locate a building or other improvement, but was performed in connection with the purchase of the tract, was within the statute's protection. See also Rosenberg v. North Bergen, 61 N.J. 190, 201, 293 A.2d 662 (1972). In summary, the courts in New Jersey have protected surveyors, but the decisions have all arisen in the context of surveys related to construction projects.

In Ciancio v. Serafini, 40 Colo.App. 168, 170, 574 P.2d 876 (1977), the Colorado Appeals Court refused to rule that a boundary survey alone can constitute an improvement and held that "a survey which is not part of an improvement or building project" is not within the statutory coverage. ⁷ As pointed out in that decision, mechanics' lien cases, although of limited application to statutes of repose, also generally hold that only those surveys which are part of a construction project fall within mechanics' lien statutes. Wilkinson v. Rowe, 266 Ala. 675, 681, 98 So.2d 435 (1957) (preparing maps and placing stakes to mark boundary lines not within lien statute). Daugherty v. Gunther, 88 Wash. 378, 378-379, 153 P. 336 (1915) (survey unrelated to subsequent construction not within lien statute), compare Smith v. Dekraay, 217 Or. 436, 446, 342 P.2d 784 (1959) (cost of surveying for location of a building within the statute). But see Nolte v. Smith, 189 Cal.App.2d 140, 147, 11 Cal.Rptr. 261 (1961) (permitting lien for subdivision survey, but California has a statute specifically covering surveys). We are in accord with these authorities and conclude that a survey and plan for the division of land does not constitute an improvement for purposes of G.L. c. 260, § 2B, at least in circumstances where it is not integrated with a building plan, or a design for construction or other change in the topography of the land.

This holding is in accord with the usual and natural meaning of the word "improvement". See Klein v. Catalano, 386 Mass. at 705, 437 N.E.2d 514. See also Kallas Millwork Corp. v. Square D Co., 66 Wis.2d 382, 386, 225 N.W.2d 454 (1975), adopting the following definition of improvement which appears in Webster's Third New International Dictionary 1138 (1971): "a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs." See also Peters v. Stone, 193 Mass. 179, 185, 79 N.E. 336 (1906).

The legislative history of G.L. c. 260, § 2B, also suggests this result. House Doc. No. 2603 of 1967 (1968 Senate Doc. No. 339), the predecessor to St.1968, c. 612, which inserted G.L. c. 260, § 2B, extended protection to surveyors as well as to architects and engineers. The report accompanying Bill No. 339 ⁸ pointed out that "the scope of a land surveyor's duties is generally limited to fixing the form and boundaries of a site" and therefore "much of the content of the report" has no application to that occupation. ⁹ 1968 Senate Doc. No. 339, at 13. The report raised a number of specific questions including, "4. Should land surveyors be treated separately?" ¹⁰ Id. at 29. As enacted, G.L. c. 260, § 2B, not only does not give surveyors separate treatment, it does not mention them. While consideration and rejection by the Legislature of the provision including surveyors does not "control our decision," the legislative history "lends support" to our conclusion that surveyors' services unrelated to a building plan or design contemplating some physical change in the land do not constitute an improvement within the statute. Superintendent of Schools of Leominster v. Mayor of Leominster, 386 Mass. 114, 118 & n.11, 434 N.E.2d 1230 (1982).

We next examine the complaint to determine whether the judgment of dismissal may be upheld on other grounds. The applicable standard is that dismissal is not proper unless it appears beyond doubt that the plaintiffs "can prove no set of facts" entitling them to relief, Woodbridge v. Worcester State Hosp., --- Mass. ---, --- & n.4, Mass.Adv.Sh. (1981) 1581, 1582 & n.4, 423 N.E.2d 782. The allegations that the error was not found until July, 1979, allow the plaintiffs to present evidence that their claims for relief did not accrue until that time. See White v. Peabody Constr. Co., 386 Mass. 121, 129, 434 N.E.2d 1015 (1982). Thus, counts I-IV alleging negligence and, also, breach of warranty, see Klein v. Catalano, 386 Mass. at 719-720 & n.19, 437 N.E.2d 514, withstand the motion to dismiss under Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). Counts V and VI, however, which allege damages on account of breach of warranties under the Uniform Commercial Code must be dismissed. The survey plan is not "goods" within G.L. c. 106, § 2-105, inserted by St.1957, c. 765, § 1. "Contracts whose predominant factor, thrust, or purpose is the rendition of services are not within the scope of art. 2." White v. Peabody Constr. Co., 386 Mass. at 132, 434 N.E.2d 1015.

The judgment as to counts I-IV is reversed, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

1 Margaret A. Raffel and Create and Construct, Inc.

2 The complaint does not allege...